Intro

Francois v. Francois is a 2025 case heard in the Ontario Superior Court of Justice in front of Justice Myers. The case confronted a procedural puzzle:

• How should the court treat a guardianship order made over a decade earlier when the person subject to the order now seeks to substitute her guardian of property?

Francois illustrates how, once capacity is lost, planning becomes far more complex and fraught. Without proactive tools like powers of attorney or updated planning, individuals may be left navigating outdated guardianship orders, procedural hurdles, and costly litigation.

Background

In 2012, the Ontario Superior Court declared Ms. Stephanie Dubuisson incapable of managing her property under section 6 of the Substitute Decisions Act. At that time, the court appointed her then-husband as her guardian of property.

Since then, circumstances changed drastically. The parties divorced, and Stephanie’s then ex-husband emigrated to Haiti with no way to be found. Left with no other guardian, Stephanie brought a motion in 2025 under section 26 of the Substitute Decisions Act to appoint a substitute – Mr. John Bailey.

Issues Before the Court

The case raised three interconnected issues:

1. Standing under section 26 of the Substitute Decisions Act
   • Did Stephanie have the statutory right to seek substitution of her guardian?

2. The Litigation guardian requirement under Rule 7.01 of the Rules of Civil Procedure
   • Could Stephanie advance the motion herself, or did her 2012 incapacity finding render her a “party under disability” who must act through a litigation guardian?

3. The “capacity paradox”
   • If she had the ability to instruct counsel about who she wanted as guardian, did that suggest she had regained sufficient capacity to grant a power of attorney for property, making guardianship unnecessary?

Analysis

1. Standing under section 26 SDA

Justice Myers held that Stephanie did have standing. Section 26 permits “any person who was required to be served with the initial application” to bring a motion to substitute a guardian.

Because Stephanie was required to be served under section 69(1) of the Substitute Decisions Act in 2012, as the person who was alleged to be incapable of managing property in the initial guardianship application, she qualified to move under section 26.

2. Litigation guardian requirement under Rule 7.01

The more difficult issue was whether Stephanie could bring the motion without a litigation guardian.

Rule 7.01 requires that a “party under disability” act through a litigation guardian unless a statute provides otherwise. The definition of “disability” expressly includes a person assessed incapable under section 6 of the Substitute Decisions Act, just like Stephanie was back in 2012.

Justice Myers emphasized that Rule 7.01(2), which allows guardianship applications to proceed without a litigation guardian for the alleged incapable person did not apply here because Stephanie was the moving party, not the Respondent. This was unlike normal guardianship applications, which are typically brought by prospective guardians, not the incapable person themself.

Justice Myers noted that the PGT will step in as litigation guardian if an incapable person needs one and no other suitable guardian is available. Here, the PGT was served  and advised that Court that it did not oppose Stephanie’s motion and that she could bring it under section 26 of the Substitute Decisions Act. However, the PGT’s approval was premised on the Court being satisfied that Stephanie remained incapable of managing her own property.

This was an untenable position in Justice Myers’ view.

• First, the Rule 7.01 problem remained unresolved: Stephanie was a “party under disability” and could not appear on her own behalf.
• Second, this raised the paradox: How could Stephanie have capacity to seek an order confirming her own incapacity?

3.  The “capacity paradox”

This paradox identified by Justice Myers lies at the heart of this decision, and ultimately lead to the dismissal of the motion.

Counsel for Stephanie submitted that she was capable of deciding who should be her guardian, but not whether she needs a guardian.

Justice Myers questioned whether such a distinction was meaningful. If she had the capacity to choose who should manage her financial affairs, why could she not execute a continuing power of attorney for property?

This raised a deeper question: was the 2012 incapacity finding still accurate in 2025? Counsel’s willingness to accept Stephanie’s instructions suggested that the finding might not reflect her present capacities.

Despite this issue, counsel argued that if Stehpanie is required to execute a Power of Attorney, then third parties like banks would likely require her to then seek a court order lifting the existing guardianship.

This was essentially a procedural technicality, and counsel said this would burden Stepanie with unnecessary expense and delay. Justice Myers rejected this framing. He emphasized that while he is “not one for technicalities generally,” the safeguards around capacity and guardianship are not mere red tape but vital protections for individual autonomy.

Quoting John Philpot Curran, he stated: “the price of liberty is eternal vigilance.” In his view, shortcuts could not be permitted where the rights of a vulnerable person were at stake.

Decision

Justice Myers dismissed the motion. He was not satisfied that Stephanie remained incapable of managing her own property. The 2012 finding might well be outdated, and guardianship – a serious infringement on civil rights –  should not be extended on the basis of procedural shortcuts.

Key Takeaways

A lot can be learned from this case. Counsel should be reminded that;

1. Incapacity is not permanent

A past incapacity finding does not guarantee continuing incapacity. Capacity is fluid, not static. Planners and litigators alike must remain vigilant. Reassessing a client’s abilities over time rather than assuming incapacity is permanent is key.

2. Autonomy is paramount, even after incapacity

Ontario law anticipates that even individuals found incapable should still have a voice in decisions that affect them. Where a person can articulate preferences, such as identifying who they trust to manage their affairs, that expression of autonomy should be respected and upheld. For planners, this is a reminder to keep autonomy at the forefront, using tools like powers of attorney and accommodations to capture and give effect to those wishes wherever possible.

3. Procedural safeguards are a part of planning – Slide 11

What may look like “technicalities”, like the use of litigation guardians and Powers of Attorney, are in fact the structures that keep vulnerable people protected. Planning after incapacity means respecting, not bypassing, these safeguards.

4. Lessons for practitioners

Planning after an incapacity finding is harder, slower, and more expensive. The best prevention is proactive planning before incapacity: timely POAs, regular review of capacity, and clear instructions.

Where Ontario Goes From Here

As a final note, Francois illustrates the rigidity of Ontario’s substitute decision-making regime. Once incapacity is declared, the SDA largely leaves courts with two stark options: guardianship or no guardianship. This binary approach does not easily accommodate situations where capacity may fluctuate or where an individual retains decision-making abilities in some regards but not others.

The Law Commission of Ontario has critiqued this “all or nothing” model, identifying the need for more flexible and less intrusive tools. In its 2017 Final Report on Legal Capacity, Decision-Making and Guardianship, the LCO recommended expanding beyond substitute decision-making to include autonomy-enhancing mechanisms such as:

1. Support Authorizations: formal arrangements allowing individuals to appoint trusted supporters to assist with day-to-day decisions without removing their legal capacity
2. Network or Co-Decision-Making: models, already used in Alberta and internationally, where a person retains legal capacity but makes decisions jointly with a co-decision-maker. These arrangements recognize diversity in decision-making needs and preserve greater autonomy
3. Tailored and Time-Limited Guardianships: the LCO urged Ontario to move toward guardianship orders that are more flexible, limited in scope, and subject to review, to avoid unnecessarily broad restrictions

The LCO’s framework emphasizes the principle of least restrictive alternatives: interventions should be no more restrictive than necessary to protect the person’s interests. Had such models been available in Francois, Stephanie might not have been forced into the paradox of either remaining under a decade-old guardianship or regaining full decision-making authority without structured supports.

View powerpoint presentation: https://welpartners.com/resources/WEL-251003-STEPToronto-FrancoisvFrancois.pdf